Proposed 2016 Formal Ethics Opinion 2: Duty of Defense Counsel Appointed after Defendant Files Pro Se Motion for Appropriate Relief
Photo Courtesy of the North Carolina State Bar
View the Proposed Ethics Opinion in Full Here
A proposed ethics opinion entitled “Duty of Defense Counsel Appointed after Defendant Files Pro Se Motion for Appropriate Relief” was proposed at the quarterly meeting on April 21, 2016. The proposed opinion considers whether defense counsel must filed an amended Motion for Appropriate Relief or inform the court, if in defense counsel’s informed and reasonable legal opinion the pro se MAR is frivolous or cites law that is no longer valid. In short, the answer is no, there is no obligation.
North Carolina General Statute §7A-451 (a)(3) states that a defendant may challenge a sentencing or conviction, through a Motion for Appropriate Relief (MAR), and that an indigent defendant filing a pro se MAR may be appointed counsel. Part of the problem with pro se MAR’s is that they often cite case law that is no longer valid.
[D]efense counsel must also determine whether there is a good faith basis in law and fact…
When determining the duties of an appointed attorney, the opinion cites Rule 1.4 and 1.2 which state that defense counsel is duty-bound to abide by the defendant’s decisions concerning the objectives of the representation, and to consult with the client as to the means by which they are to be pursued. In representing a defendant who has filed a pro se MAR, defense counsel must also determine whether there is a good faith basis in law and fact, that is not frivolous, to proceed, as stated in Rule 3.1.
Although there is no requirement to amend or inform the court, they can choose to do so. If after reviewing the pro se MAR defense counsel reaches an informed legal opinion that no good faith basis in fact or law exists for the MAR and that the MAR is frivolous, defense counsel must advise defendant of that fact. The opinion concludes by saying that if a defendant insists that an attorney make frivolous arguments, that attorney must withdraw.
